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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blair v. Federal Insurance Company (9/7/2018) sp-7287

Blair v. Federal Insurance Company (9/7/2018) sp-7287

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



DANIEL  BLAIR,                                                   )  

                                                                 )          S                                

                                                                              upreme Court No. S-16388  

                                Appellant,                       )  

                                                                 )                                                                    

                                                                            Superior Court No. 3AN-12-11530 CI  

                      v.                                         )  

                                                                 )                              

                                                                           O P I N I O N  

                                            

FEDERAL INSURANCE COMPANY )
  

                           

and CHARLES FOGLE,                                                                                                    

                                                                 )
        No. 7287 - September 7, 2018  

                                                                 )
  

                                Appellees.                       )
  

                                                                 )
  



                                                                                                              

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                     

                      Judicial District, Anchorage, William F. Morse, Judge.  



                                                                                                         

                      Appearances:                Gerald   W.   Markham,   Friday   Harbor,  

                                                                                                                   

                      Washington,  for  Appellant.                     Cheryl  L.  Graves,  Farley  &  

                                                                       

                      Graves, P.C., Anchorage, for Appellees.  



                                                                                                           

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                

                      A seaman sued his former employer and the former employer's liability  



                                                                                                                                         

insurer, claiming that the insurer had failed to pay him amounts due under the terms of  



                                                                                                                               

a settlement agreement. The seaman asserted that the "policy limits" settlement included  



                                                                                                                                              

both the policy's stated limits and attorney's fees calculated under Alaska Civil Rule 82.  



                                                                                                             

The insurer, relying on the policy's notice that fees were included in the policy limits,  


----------------------- Page 2-----------------------

 argued that the settlement had been fully satisfied.                                                                                                                                                                                 The parties also disagreed about                                                                                           



 whether costs from a review of the seaman's medical bills were properly counted against                                                                                                                                                                                                                                                                     



 the policy limits.                                                             After contentious discovery, the superior court granted summary                                                                                                                                                                                                 



judgment for the insurer, finding that the policy's Rule 82 notice was valid and that the                                                                                                                                                                                                                                                                                    



 settlement had been satisfied.                                                                                                       The court awarded attorney's fees to the insurer as the                                                                                                                                                                                



 prevailing party.                                                         



                                                            The seaman appeals the grant of summary judgment, the denial of some                                                                                                                                                                                                                                   



 discovery, and the award of attorney's fees.                                                                                                                                                        We affirm the superior court's summary                                                                                                      



judgment and discovery rulings except with regard to whether the costs of the medical                                                                                                                                                                                                                                                                   



 review were properly deducted from the policy limits; we conclude that issues of fact                                                                                                                                                                                                                                                                                    



 precluded summary judgment on this issue.                                                                                                                                                       We reverse summary judgment only as to                                                                                                                                           



 that issue, vacate the attorney's fees award, and remand for further proceedings.                                                                                                                                                                                                                     



 II.                          FACTS AND PROCEEDINGS                                            



                              A.                           Facts  



                                                           Daniel Blair was injured in August 2008 while working onboard the F/V                                                                                                                                                                                                                                          



 INVINCIBLE, a vessel owned and operated by Charles Fogle.                                                                                                                                                                                                                        Fogle held a policy of                                                                         



 marine insurance issued by Federal Insurance Company. The policy's liability limit was                                                                                                                                                                                                                                                                                   



 "$1,000,000 Each Vessel . . . [for] Any One Accident or Occurrence."                                                                                                                                                                                                                                            It also contained              



                                                                                                                                                                                                                                                                                                                                                                

 a notice, headed, "                                                         THIS POLICY LIMITS COVERAGE FOR ATTORNEY FEES  



                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                    

 UNDER ALASKA RULE OF CIVIL PROCEDURE 82," which summarized Alaska  



                                                            1  

                                                                                                                                                                                                                                                                                                                                                                                    

 Civil Rule 82  and explained that "[i]f the limit of liability of the applicable coverage is  



                                                                                                                                                                                                                                                                                                                                                  

 $1,000,000 or more, we will not pay or indemnify you for any combination of judgment  



                              1                            Alaska Rule of Civil Procedure 82(a) provides that, with some limited                                                                                                                                                                                                                           



 exceptions,   "the   prevailing   party   in   a   civil   case   shall   be   awarded   attorney's   fees  

 calculated under this rule."                                                                 



                                                                                                                                                                                        -2-                                                                                                                                                                           7287
  


----------------------- Page 3-----------------------

or claim settlement and attorney fees under Alaska Rule of Civil Procedure [sic] that                                                                                                                                                                                                                                                                                                       



exceeds the limit of liability of the applicable coverage."                                                                                                                                                                                                             



                                                              Blair and Federal, through their lawyers, negotiated over the course of                                                                                                                                                                                                                                                              



 several months and then reached a settlement agreement.                                                                                                                                                                                                               Neither party discussed Rule                                                                                     



 82 fees or the policy's Rule 82 notice during these negotiations.                                                                                                                                                                                                                                                        From the outset,                                    



however, the parties disagreed about the sum of $2,268.78 paid to Mahl's Medical                                                                                                                                                                                                                                                                                       



Review, a company that reviews medical bills in order to help "insurers save money by                                                                                                                                                                                                                                                                                                              



identifying and eliminating inaccurate, duplicate[,] and unwarranted charges."                                                                                                                                                                                                                                                                                                     Blair  



contended that the sum should not be deducted from the policy limits because Mahl's                                                                                                                                                                                                                                                                                          



was engaged to lower costs for Federal's benefit, not Blair's. Our record shows no clear                                                                                                                                                                                                                                                                                                



resolution of this issue during the negotiations.                                                                                                                                                                          



                                                              The parties signed their settlement agreement on December 27, 2009. The                                                                                                                                                                                                                                                       



agreement reads, in part:                                                                   



                                                              I, DANNY BLAIR, in exchange for the remaining policy                                                                                                                                                                                                

                                                              limits   under   the   vessel's   $1,000,000   P&I   [protection   and  

                                                              indemnity] policy do hereby release and forever discharge                                                                                                                                                                             

                                                              Charles Fogle . . . .  The P&I underwriter has calculated the                                                                                                                                                                                                        

                                                              remaining   policy   limits   at   $961,447.81   and   will   pay  that  

                                                                                                                                                                                                                                                                                                                                    

                                                              amount upon execution of this release. Mr. Blair reserves the  

                                                                                                                                                                                                                                                                                                                                      

                                                              right to claim additional amounts which he contends may be  

                                                                                                                                                                                                                                                                                                                                           2]   

                                                             part of the policy limits, including any unpaid deductible.[ 

                                                              The vessel owner                                                                      and  vessel's insurers do                                                                                                not agree that                                   

                                                              additional sums are due but if these sums are determined to                                                                                                                                                                                                              

                                                             be due as properly part of the P&I limits under this policy                                                                                                                                                                      

                                                              they will be paid.                                                                



Federal paid the specified sum of $961,447.81 to Blair.                                                                                                                                                                                                          



                               2  

                                                                                                                                                                                                                                                                                                                                                                                                

                                                              In the original, the sentence reprinted here in strikethrough was crossed out  

                                                                                                                                               

by hand and initialed by Blair.  



                                                                                                                                                                                                  -3-                                                                                                                                                                                    7287  


----------------------- Page 4-----------------------

           B.        Proceedings  



                                                                                                                          

                    Nearly three years later - on December 11, 2012 - Blair filed suit against  



                                                                                                                          

Federal.   He alleged that Federal had breached the settlement agreement by paying  



                                                                                                                         

"substantially  less"  than  the  remaining  policy  limits,  though  his  complaint  did  not  



                                                                                                                      

identify what had not been paid.  In May 2013 he filed a motion for partial summary  



                                                                                                                           

judgment that clarified his claim.  He argued that "[i]n arriving at its 'remaining policy  



                                                                                                                                      

limits' calculation Federal failed to address its obligation for [Rule] 82 attorney fees."  



                                                                                                                            

Although  acknowledging  the  existence  of  the  Rule  82  notice  in  the  policy,  Blair  



                                                                                                                          

contended that the notice did not comply with governing regulations of the Alaska  



                                                                                                                              

Division of Insurance and was therefore void. Thus, Blair argued, the policy limits were  



                                                                                                                      

the $1 million face value of the policy, less amounts already paid, plus Rule 82 attorney's  



                                                                                                                                

fees.  Blair also argued that Federal had improperly deducted the Mahl's bill from the  



                       

policy limits.  



                                                                                                                        

                     Federal cross-moved for summary judgment, arguing that the policy's  



                                                                                                                 

Rule 82 notice was valid and that the settlement was for the sum certain of $961,447.81,  



                                                                                                                                   

which it had promptly paid.   Blair then moved under Alaska Civil Rule 56(f) for a  



                                                                                                             

continuance to conduct additional discovery, and the continuance was granted.  



                                                                                                                             

                     A period of contentious discovery followed, in which the superior court  



                                                                                                                    

conducted  in  camera  review  of  some  documents  Federal  claimed  were  privileged,  



                                                                                                                                  

ordered production of some requested documents but not others, and denied a motion to  



                                                                                                                                      

compel brought by Blair. The court then granted summary judgment in favor of Federal.  



                                                                                                                               

It  found  that  Federal's  Rule  82  notice  was  lawful  because  it  conformed  with  the  



                                                                                                                             

standards imposed by the Division of Insurance. It also "construe[d] the Release to mean  



                                                                                                                               

that parties completely settled the claim against the P&I policy by having Federal pay  



                                                                                                                                

Blair  $961,447.81."               The  court  awarded  Federal,  as  the  prevailing  party,  Rule  82  



                                           

attorney's fees and costs.  



                                                                -4-                                                         7287
  


----------------------- Page 5-----------------------

                           Blair appeals the superior court's orders granting Federal's cross-motion   



for summary judgment, denying his discovery motion, and awarding Rule 82 attorney's                                                                       



fees to Federal.                 



III.          STANDARD OF REVIEW                    



                                                                                                                            3  

                           We review a grant of summary judgment de novo.                                                                                          

                                                                                                                                "We will affirm a grant  



                                                                                                                                                   

of summary judgment if there are no genuine issues of material fact and if the movant  



                                                                                    4  

                                                                                                                                                                   

is entitled to judgment as a matter of law."                                            We draw all reasonable inferences in favor  



                                                 5  

                                      

of the nonmoving party. 



                                                                                                                                                                   

                           We review a superior court's discovery rulings, including decisions about  



                                                                                                                                                  6  

                                                                                                                                                                      

"discovery sanctions, such as spoliation remedies, for abuse ofdiscretion."                                                                          We will find  



                                                                                                                               

an  abuse  of  discretion  upon  a  showing  that  a  decision  was  "arbitrary,  capricious,  



                                                                                                                            7  

                                                                                                            

manifestly unreasonable, or stemmed from improper motive." 



                                                                                                                                                                         

                           Whether  the  superior  court  applied  the  appropriate  legal  standard  in  



                                                                                                                                           8  

                                                                                                                                              

awarding attorney's fees is a question of law that we review de novo. 



              3            Alakayak  v.  B.C.  Packers,  Ltd.,  48  P.3d  432,  447   (Alaska  2002)   (citing  



Moore  v.  Allstate  Ins.  Co.,  995  P.2d  231,  233  (Alaska  2000)).   



              4            Id.  (citing  Moore,  995  P.2d  at  233).   



              5            Id.  (citing  Moore,  995  P.2d  at  233).  



              6            Todeschi  v.  Sumitomo  Metal  Mining  Pogo,  LLC,  394  P.3d  562,  570  (Alaska  



2017)   (citing   Mills   v.   Hankla,   297   P.3d   158,   164-65   (Alaska   2013));   Madonna   v.  

 Tamarack  Air,  Ltd.,  298  P.3d  875,  878  (Alaska  2013).   



              7            Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018).  

                                                                                                                                    



              8            State v. Jacob, 214 P.3d 353, 358 (Alaska 2009).  

                                                                                                                               



                                                                                    -5-                                                                            7287
  


----------------------- Page 6-----------------------

IV.         DISCUSSION
  



                                                                                                                                     

            A.	        The Superior Court Did Not Err By Entering Summary Judgment  

                                                                                                                                     

                       Against BlairOnTheIssueWhetherFederal Owed Rule82Attorney's  

                                                       

                       Fees Under The Settlement.  



                                                                                                                                                          

                       We first address whether Federal's Rule 82 notice is valid and enforceable.  



                                                                                                                                              

Concluding that it is, we consider whether there is any other basis on which Blair could  



                                                                                                                                                   

believe that the parties' settlement agreement entitled him to attorney's fees beyond the  



                                                                                                                                           

policy limits; we conclude there is not and that the superior court properly granted  



                                                            

summary judgment on this issue.  



                                                                                                                                                          

                        1.	        Federal's Rule 82 notice conformed to the notices written by the  

                                                                               

                                   Division of Insurance.  



                                                                                                                                

                       A  regulation  promulgated  by  the  Division  of  Insurance  provides  two  



                                                                                                                                                    

options for an insurer wanting to limit its exposure for Rule 82 attorney's fees to its  



                                   9  

                                                                                                                                                    

stated policy limits.                 First, an insurer may use a notice that "conform[s]" with one of  



                                                                                                                                                     10  

                                                                                                                                                          

four model forms written by the Division (referred to as Notices A, B, C, and D). 



                                                                                                                                           

Alternatively, the insurer may use a notice of its own devising, provided it obtains  



                                                                                             

written approval from the Division's director "upon a determination that the proposed  



                                                                                                                                    11  

                                                                                                                       

notice is substantially equivalent to" any one of the Division's four models. 



                                                                                                                                              

                       In Therchik v. Grant Aviation, Inc. we decided that for a notice to be found  



                                                                                                                                                 

to be "conform[ing]," it must follow the Division's model forms far more closely than  



                                                                                                      12  

                                                                                                                                                

a notice the director approves as "substantially equivalent."                                             A conforming notice must  



                                                                                                                            

be "very close to identical" to a model form, though it need not be "word-for-word  



            9           3 Alaska Administrative Code (AAC) 26.550 (2016).                                               



            10          3 AAC 26.550(b)(1).  

                                                                



            11          3 AAC 26.550(b)(2).                     



            12  

                                                                            

                       74 P.3d 191, 196-97 (Alaska 2003).  



                                                                         -6-	                                                                  7287
  


----------------------- Page 7-----------------------

                        13  

identical."                  It may contain "minute deviations, such as immaterial punctuation errors,                                                                                    



                                                                                                                                                                      14  

that would not diminish the quality of notice or the substantive message."                                                                                                           

                                                                                                                                                                            An insurer's  



                                                                                                                                                                               

notice that differs from the model forms in "substance, tone, clarity, [or] directness"  



                                                   15  

                                                         

                         

would not "conform." 



                               Federal does not dispute that it did not obtain the director's approval of its  

                                                                                                                                                                                                    



Rule 82 notice "upon a determination that [it was] substantially equivalent" to one of the  

                                                                                                                                                                                                  



Division's modelforms. The parties' disagreement focuses instead on whether Federal's  

                                                                                                                                                                                    



notice conformed with any of the four models.  Blair initially asserted that Federal's  

                                                                                                                                                                                   



notice "grossly fails to strictly comply" because it did not identify which of the model  

                                                                                                                                                            



forms it was intended to follow and it failed to include the Division's heading.  The  

                                                                                                                                                                                               



Division's notices have the following five lines at the top of the first page:  

                                                                                                                                                                 



    ALASKA DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT
                                                                                                

                                                                   DIVISION OF INSURANCE
              

                                ATTORNEY FEES COVERAGE NOTICE [A, B, C, OR D]
                                                                                      



                         THIS POLICY LIMITS COVERAGE FOR ATTORNEY'S FEES
                                                                                          

                                     UNDER ALASKA RULE OF CIVIL PROCEDURE 82
                                                                                  



Blair argued that the first three lines of this heading were necessary so the insured would                                                                                                

                                                                                                                                                                              16       Federal  

know   that   Federal's   Rule   82  notice   was   "an   Alaskan   official   notice."                                                                                              



responded that its notice was a valid combination of relevant information from the  

                                                                                                                                                                                                 



Division's Notices B and C with some minor differences in font.  

                                                                                                                                            



                               The superior court rejected Blair's argument that the notice had to include  

                                                                                                                                                                                        



the entirety of the Division's heading.  The court characterized the first three lines as  

                                                                                                                                                                                                    



                13             Id.  at 196.   



                14             Id. at 196-97.  

                                             



                15             Id.  at 198.              



                16  

                                                                            

                               Emphasis omitted.  



                                                                                                 -7-                                                                                         7287
  


----------------------- Page 8-----------------------

"simply    identif[ying]    the    notices    as    being    promulgated    by    the    Division    and  



distinguish[ing] between the four Division notices."                                                                                                                                                  Blair maintains his argument on                                                                                    



appeal, contending that "the Director wanted it clear this was an                                                                                                                                                                              Alaskan official notice                                       



from the agency                                                  charged with the insured's protection                                                                                                                , not merely some insurance                                             

                                                                                                                                                                  17   He argues that using the Division's entire  

company incomprehensible 'boiler plate.' "                                                                                                                                                                                                                                                                     



heading verbatim would give the notice greater weight and make it more likely to be  

                                                                                                                                                                                                                                                                                                                          



read.  

                     



                                                  We agree that the headings in an insurance policy should be designed to  

                                                                                                                                                                                                                                                                                                                            



attract the insured's attention to the policy's important provisions, but we conclude that  

                                                                                                                                                                                                                                                                                                                      



Federal accomplished this with its heading, the first two lines of which are reproduced  

                                                                                                                                                                                                                                                                                         



directly from the Division's model forms:  

                                                                                                                                    



                                        THIS POLICY LIMITS COVERAGE FOR ATTORNEY'S FEES
                                                                                                                                                                              

                                                            UNDER ALASKA RULE OF CIVIL PROCEDURE 82
                                                                                                                                                           

                                                                                                                            COMBINED FORM
   



Adding the Division's name and the letter designations of its model forms would dilute                                                                                                                                                                                                                        



the directness of the notice's heading. It could also be misleading: Federal's notice was                                                                                                                                                                                                                            



not  an "Alaskan official notice" but a conforming one created by Federal.                                                                                                                                                                           



                                                  Although the nonconformance argument Blair                                                                                                                                             made in his motion for                                                        



summary judgment addressed only the notice's heading, the superior court carefully                                                                                                                                                                                                               



scrutinized the body of Federal's notice and noted several other differences between it                                                                                                                                                                                                                                       



and the Division's model forms.                                                                                              Federal's notice, except for the heading, is all in the                                                                                                                                    



same typeface.                                              In the Division's Notices, however, the third and fourth paragraphs                                                                                                                                                          



(explaining the limitations on coverage) are in bold and the fifth paragraph (advising                                                                                                                                                                                                          



insureds that they may be exposed to attorney's fees liability) is in bold italics.                                                                                                                                                                                                                      As the   



superior court noted, these different fonts were presumably used for emphasis.                                                                                                                                                                                                                        But the   



                         17  

                                                                                                   

                                                  Emphases in original.  



                                                                                                                                                             -8-                                                                                                                                                  7287  


----------------------- Page 9-----------------------

 court also found that "the extent of the boldface in the Division's Notices undercut its                                                                                                                                                                                                                                                                                                                                                                                



 effectiveness"; that the use of boldface for only the most important words would have                                         



been more likely to make a difference to a reader; and that overall "the differences in                                                                                                                                                                                                                                                                                                                                                                                    



typeface have no significance in substance or clarity."                                                                                                                                                                                                                                                     Blair does not challenge these                                                                                                               



 conclusions in his opening brief, so we need not decide whether we agree.                                                                                                                                                                                                                                                                                                                                              



                                                                         The superior court also noted that Federal's "Combined Notice" combined                                                                                                                                                                                                                                                                                  



 introductory language from the Division's Notice B - addressing suits "in which we                                                                                                                                                                                                                                                                                                                                                                                   



have a right or duty to defend an insured within the limits of liability" - and Notice C                                                                                                                                                                                                                                                                                                                                                                                     



-  addressing suits "in which we have neither a right nor a duty to provide a defense but                                                                                                                                                                                                                                                                                                                                                                             



we have agreed to indemnify an insured for the costs of defense within the limits of                                                                                                                                                                                                                                                                                                                                                  



 liability."   Federal's notice combined these phrases to read, "In any suit in Alaska in                                                                                                                                                                                                                                                                                                                                                                                  



which we have a right or duty to defend an insured or in which we have neither a right                                                                                                                                                                                                                                                                                                                                                                



nor a duty to provide a defense."                                                                                                                                                   It left out the concluding phrase from Notice C:                                                                                                                                                                                                                        "but  



we have agreed to indemnify an insured for the costs of defense."                                                                                                                                                                                                                                                                                                           The superior court                                                            



 overlooked this omission when it found that the combined language did "not change the                                                                                                                                                                                                                                                                                                                                                                                



 substance of the notice" and conformed to the Division's model notices.                                                                                                                                                                                                                                                                                                                                     



                                                                         Blair argues that the omitted phrase was "essential to understanding the                                                                                                                                                                                                                                                                                                                    



 [Rule] 82 limitation in the context of a P&I policy." He asserts, however, that "[p]utting                                                                                                                                                                                                                                                                                                                                      



this [argument] in his brief would make it seriously over-length," and he refers us to his                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                      18            Though given more attention in Blair's reply than his  

 summary judgment pleadings.                                                                                                                                                                                                                                                                                                                                                                                                                                          

 opening brief, the argument is inadequately briefed, and we decline to consider it.19   We  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



                                     18                                  We note that Blair's opening brief is already overlength, and that its 32                                                                                                                                                                                                                                                                                                                      



pages of facts and proceedings fail to focus on what was relevant to the issues actually                                                                                                                                                                                                                                                                                                                                                   

briefed.    



                                     19                                 Kay v. Danbar, Inc., 132 P.3d 262, 265 n.1 (Alaska 2006) ("Because Kay's  

                                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                                                                                               (continued...)  



                                                                                                                                                                                                                                     -9-                                                                                                                                                                                                                     7287
  


----------------------- Page 10-----------------------

therefore affirm the superior                                    court's decision                     on   summary   judgment that Federal's                        



Rule 82 notice was valid.                                



                             2.	           The valid Rule 82 notice resolves the objective meaning of the                                                                                 

                                           settlement as to attorney's fees.                                        



                             We turn to the interpretation of the settlement agreement in light of our                                                                           



conclusion that Federal's Rule 82 notice is valid. "When interpreting a contract, the goal                                                                                      



                                                                                                                                       20  

 'is to give effect to the reasonable expectations of the parties.' "                                                                                                 

                                                                                                                                             In order to ascertain  



                                                                                                                                                                   

the parties' reasonable expectations, we look to the written agreement and "extrinsic  



                                                                                                                                                          21  

                                                                                                                                                                            

evidence regarding the parties' intent at the time the contract was made."                                                                                      "The intent  



                                                                                                                                                                    

of the parties when entering a contract is a question of fact and . . . summary judgment  



                                                                                                                                                                                    

is improper when the evidence before the superior court establishes a factual dispute as  



                                                                                    22  

                                                                  

to the intent of the contracting parties." 



                                                                                                                                                                                 

                             In this case there is no dispute that the insurance policy informed Blair that  



                                                                                                                                                                                 

Federal would not be liable for Rule 82 attorney's fees in excess of the policy limits. We  



                                                                                                                                                                                  

have determined that Federal's Rule 82 notice is valid.  Blair does not contend that his  



                                                                                                                                                                  

claim  relies  on  some  ambiguity  in  the  notice's  language.                                                                     The  parties'  settlement  



               19            (...continued)  



                                                                                                                                                                           

brief merely incorporates his superior court arguments on the summary judgment issues,  

                                                                                                                                                                       

we deem these issues to be inadequately briefed, and we decline to consider them.");  

                                                                                                                                                                                 

Anchorage Nissan, Inc. v. State , 941 P.2d 1229, 1240 (Alaska 1997) ("We need not  

                                                                                                                                                                     

consider arguments which a party on appeal merely adopts and incorporates by reference  

                                      

to its lower court memoranda.").  



              20            Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 305 P.3d 309, 315  

                                                                                                                                                                                

(Alaska 2013) (quoting Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012)).  

                                                                                                                                                                     



              21            Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1024  

                                                                                                                                                                             

(Alaska 1986).  

                   



              22            K &K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 712 (Alaska 2003).  

                                                                                                                                                                                          



                                                                                        -10-	                                                                                7287
  


----------------------- Page 11-----------------------

 agreement mentions attorney's fees only when listing them among the claims that Blair                                                                                                                                                                                                                                                



 expressly agreed to "release and forever discharge" "in exchange for the remaining                                                                                                                                                                                                                             



policy limits," which the agreement represents to be $961,447.81.                                                                                                                                                                                                          Nor does Blair cite                                              



 any extrinsic evidence in support of his claim; he does not allege that the parties ever                                                                                                                                                                                                                                               



 discussed attorney's fees during their negotiations.                                                                                                                                                         Even viewing the facts in the light                                                             



most favorable to Blair, there                                                                                     is simply no evidence that he reasonably expected anything                                                                                                                                           



 in settlement other than the policy limits as the policy defined them.                                                                                                                                                                                   



                                                      At oral argument Blair's counsel acknowledged that "we should have been                                                                                                                                                                                                           



more forthcoming" during negotiations by bringing up the attorney's fees issue.                                                                                                                                                                                                                                                           He  



 suggested,   however,   that   it   might   be   appropriate   for   parties   to  leave   some   terms  



unresolved during negotiations and "see what happens with the law," based on the                                                                                                                                                                                                                                                             



possibility that successful litigation in a different case will support a claim to more                                                                                                                                                                                                                                             



money before the statute of limitations runs. But assuming that was Blair's strategy here,                                                                                                                                                                                                                                             



he so closely guarded his claim to Rule 82 fees that there is no evidence it ever existed.                                                                                                                                                                                                                                                                    



 "Themutual assent requirement 'cannot be defeated by                                                                                                                                                                   theunexpressed                                                   subjectiveintent   



 of one of the parties; rather[] it must rest on an objective manifestation of mutual intent                                                                                                                                                                                                                                       

                                                                                                                                                                                         23   Blair objectively manifested his intent  

regarding the essential terms of the contract.' "                                                                                                                                                                                                                                                                                   



to settle the case for policy limits, and, with the exception noted in the section that  

                                                                                                                                                                                                                                                                                                                                          



 follows, the superior court did not err when it found that the parties completely settled  

                                                                                                                                                                                                                                     



Blair's claim, including any claim to attorney's fees.  

                                                                                                                                                                                                                      



                           B.	                        It Was Error To Enter Summary Judgment For Federal On The Issue  

                                                                                                                                                                                                                                                                                                                                     

                                                      Of The Bills From Mahl's Medical Review.  

                                                                                                                                                                                                            



                                                      Blair asserts that the superior court erred when it entered final judgment  

                                                                                                                                                                                                                                                                                                                    



without ruling on his claim that Federal improperly deducted the Mahl's payment from  

                                                                                                                                                                                                                                                                                                                                       



                           23  

                                                                                                                                                                                                                                                                                                                                                    

                                                      Colton v. Colton, 244 P.3d 1121, 1128 (Alaska 2010) (quoting Howarth v.  

                                                                                                                                                                                                                                                                      

First Nat'l Bank of Anchorage, 596 P.2d 1164, 1167 n.8 (Alaska 1979)).  



                                                                                                                                                                      -11-	                                                                                                                                                                             7287  


----------------------- Page 12-----------------------

the policy limits.                                                         Blair squarely raised this claim in his motion for summary judgment,                                                                                                                                                                                               



but the superior court's decision addressed only the Rule 82 issue, finding in Federal's                                                                                                                                                                                                                                                         



favor.  Federal contends that the court did not overlook the Mahl's payment issue but                                                                                                                                                                                                                                                                                      



rather implicitly rejected Blair's argument when it ruled that his claim was completely                                                                                                                                                                



 settled   by   Federal's   payment  of $961,447.81                                                                                                                                                            under   the settlement agreement.                                                                                                                      But  



whether the court failed to rule on the issue or implicitly ruled against Blair, we conclude                                                                                                                                                                                                                                                       



it was error because fact issues should have precluded summary judgment.                                                                                                                                                                                                                                                                 



                                                           In the settlement agreement, the sentence reserving Blair's "right to claim                                                                                                                                                                                                                            



additional amounts which he contends may be part of the policy limits" is stricken and                                                                                                                                                                                                                                                                                    



initialed by Blair, but the next sentence remains: "The vessel owner and vessel's insurers                                                                                                                                                                                                                                                              



do not agree that additional sums are due but if these sums are determined to be due as                                                                                                                                                                                                                                                                                          



properly part of the P&I limits under this policy they will be paid."                                                                                                                                                                                                                                  Federal's attorney   



appears   to   have   conceded   at   his   deposition   that   the   settlement   agreement's   phrase  

                                                                                                                                                                                                                                        24               The  other  extrinsic  evidence  

"additional   sums"   referred   to   the   Mahl's   payment.                                                                                                                                                                                                                                                                                    



reinforces this conclusion:  Blair contested the Mahl's payment from the time of his first  

                                                                                                                                                                                                                                                                                                                                                                         



letter discussing settlement. The record also contains emails showing that the parties had  

                                                                                                                                                                                                                                                                                                                                                                           



 still failed to reach agreement on the Mahl's payment a week before the settlement  

                                                                                                                                                                                                                                                                                                                                            



agreement was signed.   And the underlying policy is reasonably susceptible to two  

                                                                                                                                                                                                                                                                                                                                                                        



interpretations:  either  the  Mahl's  payment  was  a  legitimate  expense  of  the  insured  

                                                                                                                                                                                                                                                                                                                                                        



charged against the policy limits or, as Blair argued, the services were analogous to those  

                                                                                                                                                                                                                                                                                                                                                                   



provided by an adjuster and should be carried by the insurer.  

                                                                                                                                                                                                                                                                             



                             24                            The attorney also testified, however, that this line was meant to be stricken                                                                                                                                                                                                                



because the Mahl's payment issue had been resolved. But because Federal prevailed on                                                                                                                                                                                                                                                                                           

 summary judgment, we view the evidence in the light most favorable to Blair.                                                                                                                                                                                                                                                                  Alakayak  

v.  B.C. Packers, Ltd.                                                                    , 48 P.3d 432, 447 (Alaska 2002) (citing                                                                                                                                     Moore v. Allstate Ins. Co.                                                                                       ,  

995 P.2d 231, 233 (Alaska 2000)).                                                                                                                         



                                                                                                                                                                                     -12-                                                                                                                                                                            7287
  


----------------------- Page 13-----------------------

                                  We conclude there was a genuine issue of material fact as to whether the                                                                                                           



 issue of the Mahl's payment was resolved or was left open for later determination.                                                                                                                               We  



therefore reverse the grant of summary judgment on this narrow issue.                                                                                                 



                  C.	             Blair Demonstrates No Abuse Of Discretion In The Superior Court's                                                                                                     

                                  Denial Of His Discovery Motions.                                    



                                  Blair also asserts that the superior court abused its discretion by improperly                                                                                 



 denying discovery.                                His briefing of the issue is cursory and confusing.                                                                               He refers to an                   



 attorney's bills and files from the Coastal Marine Fund, which he alleges has acted as                                                                                                                                



                                         25  

Federal's agent.                                                                                                                                                                                                   

                                                 He provides no citations to the record, cites no legal authority, and  



                                                                                                                                                 26 

                                                                                                                                                                                                                     

 does not explain how the court's rulings prejudiced him.                                                                                              Federal's discussion of the  



                                                                                                                                                                                                       

 discovery issues helps our understanding of them, but it would be anomalous for us to  



                                                                                                                                                                                                                     

 allow the appellee's helpfulness to resurrect arguments the appellant has waived by his  



                                                   27  

                                                                                                                                                                                                        

 inadequate briefing.                                     In short, Blair gives us no basis for determining that the superior  



                                                                                                                                                    

 court abused its discretion in any of its discovery rulings.  



                 25               Blair's discovery argument also mentions "Bauer/Moynihan documents,"                                                                                       



not further explained, but he describes them as "belatedly produced," so we assume his                                                                                                                               

 claim of error does not extend to them.                                                             



                 26               Blair cites to earlier pages of his brief for "[a] description of his denial of  

                                                                                                                                                                                                                       

 discovery into Fogle's agents['] documents of events surrounding the execution of  

                                                                                                                                                                                                                      

Blair's release," but we do not find those earlier pages any more helpful in constructing  

                                                                                                                                                                                             

Blair's arguments.  

                                                   



                 27               See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) ("[W]aiver due  

                                                                                                                                                                                                                    

to inadequate briefing 'is not correctable by arguing the issue in a reply brief.' " (quoting  

                                                                                                                                                                                                                               

Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991))). In Juelfs v. Gough,  

                                                                                                                                                                                                          

41 P.3d 593, 596 (Alaska 2002), we declined to find an issue "waived on the basis of  

                                                                                                                                                                                                                       

 cursory briefing" in part because the appellee "accurately perceive[d] [the appellant's]  

                                                                                                                                                                                              

 argument and respond[ed] to it."  But the appellant in that case was unrepresented, and  

                                                                                                                                                                                                                   

 even so she made her argument "implicitly and in a manner that we can easily review,"  

                                                                                                                                                                                                       

 id., which is not the case here.  

                                                                                



                                                                                                         -13-	                                                                                                  7287
  


----------------------- Page 14-----------------------

                   D.	                The Superior Court Did Not Err By Deciding That Maritime Law Did                                                                                                                                  

                                     Not Preclude An Award Of Rule 82 Attorney's Fees.                                                                                             



                                      Our   conclusion   that   one   substantive   claim   remains   to   be   resolved   on  



remand - regarding the payment to Mahl's Medical Review - requires the superior                                                                                                                                            



court to also reconsider its prevailing party determination and attorney's fees award. For                                                                                                                                               



the sake of efficiency we address Blair's argument that Federal cannot recover Rule 82                                                                                                                                                     



fees because Blair's claim arose in admiralty.                                                     



                                     We rejected the same argument more than 30 years ago in                                                                                                                     Williams v.   



Eckert, in which we held that a plaintiff who sued in state court to recover a vessel was                                                                                                                                              



                                                                                                                                                  28  

entitled to Rule 82 attorney's fees when he prevailed.                                                                                                                                                                                   

                                                                                                                                                        We noted that "Congress has not  



                                                                                                                                                                                                                                         

prohibited such an award in state actions arising out of the admiralty jurisdiction of the  



                                                                                                                                                                                                                                            

United States" and that "an award of attorney's fees in a state court does not frustrate or  



                                                                                                                                                                                                                             

displace the essential  features of substantive maritime law" because "[i]t is merely  



                                                        29 

                                                                                                                                                                         

remedial in nature."                                          We extensively revisited  Williams in Hughes v. Foster Wheeler  



 Co., in which we concluded once again that Rule 82 was not inconsistent with federal  



                                                                                                                                                                                             30  

                                                                                                                                                                                                     

law and could be applied to mariners' claims brought in state court. 



                                      Blair does not engage significantly with our discussion in  Williams and  

                                                                                                                                                                                                                                       



Hughes, much less carry his "heavy threshold burden of showing compelling reasons"  

                                                                                                                                                                                                                          

for overturning these precedents.31                                                                 His central argument is that attorney's fees awards  

                                                                                                                                                                                                                              



may chill future claims brought by other mariners and that courts must be particularly  

                                                                                                                                                                                                                  



                   28                 643  P.2d  991,  997  (Alaska   1982).    



                   29                Id.  



                   30                 932  P.2d  784,  786-91  (Alaska   1997).  



                   31                McCrary  v.  Ivanof  Bay  Vill.,  265  P.3d  337,  340-41  (Alaska  2011)  (quoting  



 Guerrero  ex.  rel.  Guerrero  v.  Alaska  Hous.  Fin.  Corp.,  123  P.3d  966,  982  n.104  (Alaska  

2005)).  



                                                                                                                    -14-	                                                                                                           7287
  


----------------------- Page 15-----------------------

                                                                                                                                32  

solicitous of sailors as "the wards of admiralty."                                                                                    But many would-be civil plaintiffs                                    



face the same potential "chilling" effect. Accordingly, the factors listed in Rule 82(b)(3)                                                                                                                    



allow the court to vary an award based on considerations including "the extent to which                                                                                                                             



a given fee award may be so onerous to the non-prevailing party that it would deter                                                                                                                                   

similarly situated litigants from the voluntary use of the courts"                                                                                                       33 and "other equitable  



factors  deemed  relevant."34                                                   Because  federal  law  does  not  displace  Rule  82  when  

                                                                                                                                                                                                                     



mariners bring their suits in state court, and because Rule 82 accommodates the concern  

                                                                                                                                                                                                                



Blair presses on appeal, we see no reason to again reconsider Williams and Hughes . The  

                                                                                                                                                                                                                          



superior court did not err in deciding that Rule 82 applied to this case.  

                                                                                                                                                                                            



V.                CONCLUSION  



                                   WeAFFIRMthesuperior court'ssummaryjudgment and discoveryrulings  

                                                                                                                                                                                                                   



except with respect to the claim regarding Mahl's Medical Review.  We REVERSE the  

                                                                                                                                                                                                                            



entry of summary judgment on this issue, VACATE the attorney's fees award, and  

                                                                                                                                                                                                                          



REMAND for further proceedings consistent with this opinion.  

                                                                                                                                                  



                  32               See Brown v. State                                , 816 P.2d 1368, 1371 (Alaska 1991).                                                                  



                  33  

                                                                                   

                                   Alaska R. Civ. P. 82(b)(3)(I).  



                  34  

                                                                                   

                                   Alaska R. Civ. P. 82(b)(3)(K).  



                                                                                                             -15-                                                                                                      7287
  

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